Rebecca Green: A Spade is a Spade (Rucho Symposium)

The following is a guest post from Rebecca Green, part of the symposium on Partisan Gerrymandering after Rucho:

The Rucho decision is hard to get your head around. Plaintiffs presented two clean cases with clear “smoking guns”: partisan gerrymanders in which legislators unabashedly muted the voices of voters from opposing parties through line-drawing trickery. As many commenters have since noted, that a majority of justices were unable to call a spade a spade will trouble anyone who cares about giving voters a fair shake in the democratic process.

What Rucho means for racial discrimination in districting is less clear. For decades now, court after court has attempted to untangle racial and partisan motivations of line drawers. Will Rucho mark the end of this slog? Will every line drawer who sorts voters by race simply cite political ends as the predominant motivating factor to escape racial gerrymandering rulings?

Recent experience in Virginia suggests it will not be so simple. I observed a morning of testimony in the remand trial of Bethune Hill v. Virginia. The witness that day was the guy who sat at the computer drawing Virginia’s lines in 2011. In question after question he proclaimed that his decisions were guided purely by partisanship. Asked about one line drawing decision, he said it had been crafted to draw a democratic legislator out of her district. Asked about another he explained that protecting a Republican incumbent supplied his motivation. At every turn and in every instance he offered partisanship (or as the post-trial brief termed it “continuity, core protection, and incumbent protection”) as the sole motivator.

His confessions on the stand seemed incredible—my non-lawyer seatmate expressed shock that the witness admitted to such bare partisan motive. Of course, North Carolina line drawers were just as bold with the same goal in mind: to avoid a racial gerrymander ruling.

Will the tactic of citing partisan motives to get off the racial gerrymandering hook work? It didn’t in Virginia. Plaintiffs in Bethune Hill convinced a majority of the three-judge district court on remand that partisan claims were pretext—that racial considerations were unconstitutionally driving line drawing decisions in the challenged districts.

This outcome is especially possible in states where race and party don’t map onto each other reliably. As Justin Levitt, Rick Hasen, and others have pointed out, in some states the correlation between minority voters voting for Democrats and Anglo voters voting for Republicans is high. But in other states, like Florida, North Carolina and Virginia, the correlation doesn’t map as closely—lots of non-minority voters vote for Democrats. In those states, a map drawn to shut out Democrats can look different than a map that harms minority voters (or a map that tries to shut out Democrats by harming minorities as Justin explains). That’s the essence of the holding in Bethune Hill.

This outcome suggests that Rucho will not change the calculus in racial gerrymandering claims. Maps’ defenders will continue to assert bald partisanship—now without fear of a partisan gerrymandering consequence. But racial gerrymandering claims will not go away.

Before last week’s decision, Rucho held the promise of eradicating behaviors that drive the worst gerrymanders out there: efforts to use fine-grained data about voters—racial and political—to maximize partisan gain. If Rucho had ruled partisan gerrymandering unconstitutional, defendants in racial gerrymandering cases would have far less to hide behind. As it stands now, we are in for more of the same: minority plaintiffs who have been packed and cracked with abandon left with no recourse but racial gerrymandering claims (and/or complex, hard-to-prove VRA Section 2 vote dilution claims if the facts fit). As Pam Karlan argued in her Whitford amicus, it would have been a lot cleaner to call a spade a spade.

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